Unbecoming Conduct

Ty Cobb, pictured in Denver, on Jan. 16, 2014, has shown himself to have a flair for mustaches, neckwear, and profanity-laden emails.

Jerry Cleveland/The Denver Post via Getty Images

On Tuesday evening, in keeping with the finest traditions of the Trump administration’s legal team, the president’s special counsel sent off a string of expletive-laden emails to a total stranger. It was like Groundhog Day for lawyers with huge egos and seemingly no self-control. Earlier this summer, Marc Kasowitz, then the lead lawyer for Trump’s outside legal team, upped his ethical lapse game when he issued an obscenity-laden late-night rant at a random email correspondent. Kasowitz’s threats included the memorable phrase: “Watch your back, bitch.” Kasowitz apologized, blamed his late hours, and eventually saw his role on Trump’s legal team diminished. That’s when the notably named Ty Cobb stepped in as lead lawyer and White House special counsel.

But—as if it is now a prong in any Trump lawyer’s hazing regime—we have since learned that Cobb has also engaged in protracted, nasty email battles. As Natasha Bertrand of Business Insider reported on Wednesday, Trump’s lawyer went several rounds with Jeff Jetton, a citizen-journalist and celebrated D.C. restaurateur who’s made a name for himself by befriending strange characters in Trump’s orbit and occasionally scooping the rest of the press corps with information on Trump-Russia connections. After Jetton sent an email to Trump’s attorney asking how he could stand to work for this president, Cobb wrote back from his official White House account, justifying his legal work in the Trump administration with claims that he and John Kelly were the “adults in the room.” “I walked away from $4 million annually to do this, had to sell my entire retirement account for major capital losses and lost a shitload to try to protect the third pillar of democracy,” he told Jetton. “Your hate I will never understand as an American. Hope you get help!”

Two comments: The first is that being a millionaire, it appears, is no longer just a prerequisite for a high-level Trump job. It’s now also the moral justification for it. Additionally, why is it that Trump and Trump alone never had to sell off retirement accounts or step away from his millions to work in the Trump administration?

In any event, Cobb went on to reject any Russia­–Trump collusion allegations as “bullshit Russian bullshit that hurts us now and is totally political limiting Russian cooperation against NK.” He continued: “This shit is real and real time.”

In Lawyer Land, profanity-laced emails from White House attorneys to private citizens still manage to horrify. But in Trump Lawyer Land, we have come to dismiss such conduct as “it’s just Tuesday.” This latest outburst, though, also raised questions about whether any professional standards had been violated. Despite the ugliness of the entire episode, which was punctuated on Thursday with a new report from Bertrand that Cobb had joked about droning her, it seems as though Cobb broke no official rules of any relevant bar association.

The New York State Bar Association’s particularly stringent ethics rules, which would have applied to Kasowitz, include provisions that preclude attorneys from engaging “in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer” or anything “that is prejudicial to the administration of justice.” Another ethics rule prevents attorneys from doing anything to “embarrass or harm a third person.” But legal ethics experts at the time were mostly of the view that Kasowitz’s conduct didn’t seem likely to engender disciplinary action.

Since Cobb is not a member of the New York bar, he is subject to less rigid rules but still is formally bound by the American Bar Association’s rules of professional conduct, which prohibit lawyers from “engag[ing] in conduct that the lawyer knows or reasonably should know is harassment.” Georgetown University Law Center’s ethics expert David Luban explained to me that what Cobb wrote to Jetton was gross but not an ethics violation. “The only rules governing what a lawyer says (outside of court and official documents) to someone other than his client are the rule of confidentiality and the catch-all rule against ‘conduct involving dishonesty, fraud, deceit, or misrepresentation,’ ” he told me over email. No confidences were revealed here and “Cobb’s emails don’t seem to be true-false statements except in the most innocuous sense,” so Cobb should be fine.

Later in the week, though, Cobb came closer to revealing some confidences but still appeared to be fine after being tricked by a British email prankster. Bertrand reported that the prankster, posing as White House social media director Dan Scavino, got Cobb to reveal a potential legal strategy in the Russia case: pin the blame on former campaign boss Paul Manafort and former National Security Adviser Michael Flynn.

“I have great confidence there is nothing there implicating the President or the White House,” Cobb wrote in an email to the fake Scavino. “Manafort and Flynn have issues separate and apart from the WH that will cause the investigation to linger but am hoping we get a clean bill of health soon.”

Again, this conduct came closer to the line but still didn’t cross it. Luban notes, however, that the D.C. bar association “warns lawyers sending electronic communications to be scrupulous in insuring that they don’t inadvertently reveal confidences or secrets of the client.”

More from Luban:

The underlying principle is that confidentiality requires being really careful about what you reveal through electronic media. Now I think Cobb’s emails would violate this principle if he was representing Manafort or Flynn, or if he had reason to believe that Manafort or Flynn’s legal woes might rub off on the president. But they aren’t his clients, and it seems from the content that he is telling “Scavino” that Manafort and Flynn’s legal woes don’t tar the president, who is not implicated. That doesn’t reveal any confidences or secrets (i.e., privileged information or embarrassing information about his client). … Of course, it’s remarkably bad judgment for Cobb to be so profligate in his emails and careless about who he sends them to.

Of course, the idea that White House lawyers don’t casually swear at strangers from their official White House accounts, or carelessly reveal legal opinions to an email prankster, is merely a norm. As every last norm around civil and sober conduct collapses during this administration, though, the only recourse when lawyers behave like Real Housewives seems to be sadness for the reputation and esteem of the profession.